As 2010 gets underway, Bill Siksay’s private member’s bill C-3891 will be coming up for discussion to add “gender identity” and “gender expression” to the list of protected classes in the Canadian Human Rights Act and the Criminal Code of Canada.

This bill is something the GLBT community as a whole should be aware of, and get involved in working toward its passage — it more important than people realize.

Gender Identity

… is the identity a person knows themselves to be, even if it’s different from their birth sex. This terminology is designed to include transsexuals in protected classes.

In some of the lesbian community, people who adhere to the second wave feminism as discussed by Julie Bindel, Janice Raymond et al sometimes object to transsexual women and anything that might protect them legally. This is an oversimplification, but second wave feminism asserts that gender is entirely socially constructed, while transsexuality proposes that there is something intrinsic (i.e. biological) and inescapable about trans identities – this has tended to cause both philosophies to collide, yet can be resolved. I’ve written in this space about transfeminism before and don’t have space in this article to do so, but can point people to a discussion online, “The Prerequisites To Woman” 2 for those who’d like to know more. I’ll also footnote a few of the recent scientific developments pointing to a likely biological origin of transsexualism for further research (below). 3

Gender Expression

… is the way a person outwardly expresses their gender through dress, behaviour, gesture, speech and other aspects of presentation and communication. This terminology encompasses:

Non-trans-identified men who are perceived as “too feminine,”

Non-trans-identified women who are perceived as “too masculine,”

People with genderqueer / androgynous presentation or who play with expression, and

People who crossdress privately or perform in drag.

Although there is not as much awareness regarding gender expression in Canadian GLBT communities as yet, it is one area in which gay / lesbian and transgender issues overlap considerably. Even if one doesn’t identify as trans in any way, one can still be the brunt of this kind of discrimination, and not adequately covered under “sexual orientation.” When Stacey Fearnall was fired from her job at a restaurant in Owen Sound, Ontario for shaving her head to raise money for breast cancer research,4 this was the result of an employer’s objection to her gender expression.

Pre-Emptively Dispelling the Washroom Panic

If this Bill is noted and remarked on by far right conservatives and Fundamentalist Christians, this will probably be spun as granting predators the ability to change washroom choice on a whim. It does not. Firstly, predatory behaviour in any public space is still illegal regardless of who undertakes it. Secondly, the changes refer to non-discrimination regarding housing and employment, as well as protection from hate crimes (nothing about washrooms). And finally, over 120 jurisdictions in North America have passed trans-inclusive legislation5 (though only the NorthWest Territories and the City of Toronto have inclusive legislation in all of Canada). Only once has this been used to justify seemingly predatory behaviour by crossdressing men in washrooms or showers… at a gym in Gaithersburg, Maryland, in an incident that an anti-gay group called Citizens for Responsible Government staged. 6 There is no statistical evidence to support the spectre of predatory behaviour in womens’ spaces by transsexual women. Be aware if / when this claim comes up, because it is the far right’s favorite fallacy used to drum up fear.

Why Explicit Inclusion is Important

It is true that in Canadian practice, transsexuals are usually covered by sex or gender terminology. However, this calls for it to be demonstrated in every case how transgender is a gender or sex, and therefore inclusion is always subject to interpretation. In other jurisdictions with similar implicit inclusion, it has not been unusual for an employer’s dress code to be given greater weight in a courtroom setting than a person’s gender identity (i.e. Creed v. Family Express 2007, Brant v. Chop Shop 2009 and more).7

The implicit inclusion does not necessarily apply to gender expression, however, and interpretation can be much more unpredictable.

It’s also important to send a clear message to employers and landlords that it’s wrong to discriminate.

With regards to the Criminal Code and hate crime law, the absence of explicit inclusion means that people who commit acts of violence against transgender individuals can still use trans panic defenses to barter sentences down to negligible punishments. 8

Courts in Ontario and British Columbia have already issued rulings that include recommendations that gender identity and expression need to be codified in law.

What You Can Do

Firstly, you can call or write your Member of Parliament, and let him or her know that as a constituent, you support Bill C-389 and specific inclusion of “gender identity” and “gender expression” in the Canadian Human Rights Act and the Criminal Code of Canada. If you don’t know who your member of Parliament is, there is a way to find out on the Government of Canada website by searching your postal code (no dashes or spaces). 9 If the person you speak to is unfamiliar with transsexuality and the larger transgender umbrella, you can point them to the AlbertaTrans.org10 website for more information.

You can also contact the leaders of the Opposition parties, asking that they call for their party to support the initiative and promote awareness among their sitting MPs. New Democrats and the Green Party have expressly stated full party support for trans inclusion. Party leaders are: Michael Ignatieff (Liberal Party of Canada), Jack Layton (New Democrat Party), Gilles Duceppe (Bloq Quebecois), and Elizabeth May (Green Party of Canada).

Written correspondence to all MPs and Party Leaders can be sent postage free to:

House of Commons
Ottawa, Ontario
K1A 0A6

Please note that written correspondence tends to be taken more seriously than email. Main office phone and email staff options:

And thirdly, you can forward this call of action to anyone you think would be willing to take a few moments and throw their support in as well.

We cannot succumb to defeatism and negativity with regards to this Bill. With Alberta being a stronghold for the governing PCs, it is especially important that the Albertan LGBT community and allies make their voices heard to their MPs.

Since the Governor-General granted Stephen Harpers request that Parliament be prorogued, this bill, like any other that was being considered, will have to be reintroduced and start from scratch. Fortunately, I know that Bill Siksay will not let this matter go, and we must not either. As a member of the Liberal Party of Canada, I will be pressuring the leader and many other MPs to support this bill. Unfortunately, at this point, we no longer know when it will be time to apply the pressure.

Courts in Ontario and British Columbia have already issued rulings that include recommendations that gender identity and expression need to be codified in law.

Do you have citations for these court rulings? I would like to include them in my letters; I think showing that legal opinions support the legislation is a strong argument and gives some political cover to MPs who could be supportive but may worry about bigot backlash from some of their constituents.

I think targeting the party leaders is a very good idea. The BQ is pretty much like the NDP on social issues and would likely be supportive.

Maybe we can convince Iggy that by teaming up with the NDP and BQ to pass this over the objections of the Cons, he can poke Stevie in the eye. And if Con MPs raise a fuss about it, that may benefit the Liberals since every time some Con MP has a bigot eruption, their party’s polling drops among urban voters.

Good question. At a cursory glance, I can’t find the cases I’m thinking of. I will dig further, watch this space.

I may have overstated the BC one, which I think was during the Nixon v. RR case (either BC Supreme or Court of Appeal) that mentioned gender identity was not a codified characteristic, but stopped short of recommending that it be added. Again, will dig further.

Right now though it has been somewhat spoken about in various Ontario Human Rights Cases nothing specific has actually been said directing the province or really saying that this protection should be put in. It is loosely written into the code right now.
That said The head of the OHRC is very much supportive of the idea and groups in Ontario have been meeting with various MPPs, various parties trying to get this done. MPP Cheri DiNovo had introduced a bill(Tobi’s Law) a few years back but it died on the table.

THE DEATH OF THE TRANSGENDER UMBRELLA: "If you've traveled anywhere among trans or LGBT blogs in the past year or three, you've inevitably come across an ongoing battle over labels, and particularly "transgender" as an umbrella term. It seems to be a conflict without end, without middle ground and without compromise..."

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